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DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE THE DEFECT WHICH CAUSED PLAINTIFF’S FOOT TO SINK INTO SOFT ASPHALT WAS TRIVIAL OR OPEN AND OBVIOUS AS A MATTER OF LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the defect which allegedly caused plaintiff’s foot to sink down about an inch into soft temporary asphalt was trivial or open and obvious as a matter of law:

Although defendants stress that the alleged defect was, at most by plaintiff’s own admission, only an inch in height, even physically small defects can be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . When considering the attendant circumstances, including that the defect formed itself only as plaintiff stepped down on it, the location of the alleged defect in front of plaintiff’s driveway and that defendants acknowledged temporary asphalt could depress or settle but had no record or knowledge if they performed any inspection in the area where plaintiff fell, we cannot say “as a matter of law that the condition was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … . Nor can we say that the defect, which may have formed due to voids under the surface of the temporary asphalt and was not physically observable until after plaintiff stepped down on it, “did not constitute a trap for the unwary” … . To this point, the fact that the backfilled trench had a sharply contrasted hue as opposed to the rest of the roadway surface or the mouth of plaintiff’s driveway simply does not translate to an open and obvious condition because of the nature of the defect, which only formed after it had been stepped on, and therefore defendants’ reliance on these facts as an aegis is misplaced. Santiago v National Grid USA Serv. Co., Inc., 2025 NY Slip Op 01139, Third Dept 2-27-25

Practice Point: The defendant seeking summary judgment in a slip and fall case bears the burden of demonstrating the defect which allegedly caused plaintiff to fall was trivial or open and obvious. Here defendants did not submit sufficient evidence to eliminate questions of fact for either theory.

 

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